HEWITT et al. v. HUFFMAN. (Supreme Court of Oregon. Nov. 30, 1909.) 1. PRINCIPAL AND AGENT (§ 23*)-EXISTENCE OF RELATION-EVIDENCE.

The mere fact that defendant took in a horse trade notes from plaintiffs payable to a third party was not conclusive evidence that defendant was the agent of such third party.

[Ed. Note. For other cases, see Principal and Agent, Cent. Dig. § 41; Dec. Dig. § 23.*] 2. TRIAL (§ 143*)-PROVINCE OF COURT AND JURY-CONFLICTING EVIDENCE.

Where the evidence is conflicting, the issue is for the jury.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. § 143.*] 3. PLEADING (§ 126*)-ANSWER.

Where the complaint alleged that plaintiffs' stallion was worth $2,000, an answer denying that it was worth $2,000, or any greater sum than $practically admitted the value of the stallion to be any sum less than $2,000; the quoted words adding nothing to the denial. [Ed. Note.-For other cases, see Pleading, Cent. Dig. § 262; Dec. Dig. § 126.*]

4. APPEAL AND ERROR (§ 248*)-FAILURE TO SAVE EXCEPTION-EFFECT.

A ruling to which no exception was saved will not be considered on appeal.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 1432; Dec. Dig. § 248.*]

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Action by Carl Hewitt and another, copartners doing business as Hewitt Bros., against George L. Huffman. Judgment for plaintiffs, and defendant appeals. Affirmed. This is an action brought by plaintiff's against defendant issuing out of an alleged breach of contract. The complaint avers that on October 26, 1907, plaintiffs, as partners, were the owners of a black Percheron stallion of about 1,800 pounds weight, and of the value of $2,000; that defendant was in possession of a small stallion named Mosco, of the value of about $1,000, of which, he represented to plaintiffs, he had full right to dispose; that on said date plaintiffs and defendant entered into a trade or swap, whereby it was agreed that the former should fully part with the title and possession of the black stallion and give their promissory notes for the total amount of $1,200, and payable to the order of A. C. Ruby & Co., to the defendant, and that defendant, in consideration thereof and in exchange therefor, should retain possession of the stallion Mosco, and should, within 60 days from and after said date, sell and dispose of Mosco, and should place in a bank to the credit of the plaintiffs good bankable promissory notes of the full face value of $3,000; that plaintiffs thereupon delivered the black stallion and the $1,200 in notes to defendant, but that the latter wholly failed to deposit the $3,000 in notes, and failed and still fails and refuses to sell or dispose of the stallion Mosco. The answer admits that plaintiffs were the owners of the black stallion, but denies that he

was of the value of $2,000, or any other or greater sum than $; admits that de$fendant on October 26, 1907, was in possession of the stallion Mosco; and that he represented he had full power to sell and dispose of him, but denies the other allegations of the complaint. For a further de

fense it is averred in the answer that at the date of said trade A. C. Ruby & Co., of Portland, Or., were engaged in the business of dealing in stallions, and that defendant was of making sale of such animals as were contheir duly authorized agent for the purpose signed to him in Oregon and elsewhere; that on this date said stallion Mosco was the property of A. C. Ruby & Co., and that defendant's possession of him was as agent for said A. C. Ruby & Co. and not otherwise; that on October 26, 1907, the plaintiffs and the defendant, as the agent of A. C. Ruby & Co., entered into a contract by the terms of which the defendant sold and delivered to plaintiffs the horse Mosco in consideration of the delivery to him of the black stallion, and the agreement on the part of the plaintiffs to pay A. C. Ruby & Co. the sum of $1,200 in three installments, evidenced by promissory notes of $400 each; that said contract was then and there reduced to writing and signed by the respective parties, whereupon the defendant then and there delivered the stallion Mosco to plaintiffs, who, in turn, delivered to defendant the black stallion and the said promissory notes; that ever since said date plaintiffs have been and now are in possession of the stallion Mosco; that A. C. Ruby & Co. are in the possession of the three promissory notes, and have sold and disposed of the black stallion; and that said transaction is the same referred to in plaintiffs' complaint. Upon the trial there was a verdict and judgment in favor of plaintiffs for $1,500 as damages, from which the defendant appeals.

B. F. Wilson (C. H. Finn, on the brief), for appellant. Olmstead & Strayer (Ivanhoe & Hodgin, on the brief), for respondents.

MCBRIDE, J. (after stating the facts as above). It is claimed by the defendant that he cannot be held personally liable in this action because he acted as agent of A. C. Ruby & Co., but we cannot assume in the face of the testimony that such fact was established. The mere fact that he took notes from the plaintiffs, payable to A. C. Ruby & Co., while a circumstance tending to corroborate his contention, is not conclusive. It is not unusual for a person dealing on his own account to take paper payable to a third party. The evidence of plaintiffs tended to show that he was acting on his own account, and, as the testimony was contradictory, the matter was within the province of the jury, which must have found with the plaintiffs upon that contention.

It is also claimed that the damages are excessive, and that only nominal damages should have been given, as there was no evidence as to the value of the horses. The plaintiffs offered to show the value of the animals, but, upon the objection of defendant, this testimony was excluded. While this error of the court prevented plaintiffs from fully presenting their case, there is an admission in the pleadings that furnished the juny a fair basis for estimating the value of the black stallion. The complaint alleges this stallion was worth $2,000. The answer denies that it was worth $2,000, “or any greater sum than $The words last quoted add nothing to the extent of the denial, which practically admits the value of the stallion to be any sum less than $2,000. If the jury believed plaintiffs' testimony, as they evidently did, that defendant had their note for $1,200 and their horse, and they had received nothing in return, the verdict was exceedingly moderate if plaintiffs were entitled to recover at all.

Several objections are made to the rulings of the court upon the admission and rejection of testimony, but we are of the opinion that none of them are well taken.

Error is alleged on account of the ruling of the court allowing signatures especially prepared for the purpose to be submitted to certain experts on handwriting who were called by defendant to prove the genuineness of the signatures of plaintiffs to certain alleged contracts with Ruby & Co. No exception was saved to the ruling of the court on this subject, and it is therefore not before us. The judgment of the lower court will be affirmed.

NORCROSS, C. J. Counsel for appellants has filed a petition for a rehearing in which he contends that this court should consider the affidavit of Alfred Chartz, filed after the motion for a new trial had been determined in the lower court, because there was no suggestion of diminution of record or motion to strike, and that both parties impliedly agreed that the court should consider the affidavits filed, which are conceded to be dehors the record; also that the conclusion reached by this court on the townsite question is contrary to the decisions of

Our former ruling, that the affidavit referred to cannot be considered upon the appeal, is abundantly supported by numerous decisions of this court. Simpson v. Ogg, 18 Nev. 28, 1 Pac. 827; Marshall v. Golden Fleece M. Co., 16 Nev. 156; State v. McMahon, 17 Nev. 365, 30 Pac. 1000; State v. McLane, 15 Nev. 345, 371.

Upon the townsite question, the petition does not present any points not thoroughly covered by the original brief. On account of the importance of the question, however, we have again carefully considered the decisions of the Supreme Court of the United States and others not cited, and we are still of the opinion that the conclusions heretofore reached are not in conflict with the decisions of the Supreme Court of the United States, but are in harmony therewith.

The petition is denied.

SWEENEY and TALBOT, JJ., concur.

ANDERSON v. FEUTSCH et al. (No. 1,825.) (Supreme Court of Nevada. Nov. 30, 1909.) MUNICIPAL CORPORATIONS (§ 808*)-DEFECTIVE STREETS-EXCAVATIONS-FAILURE TO

GUARD-STATUTES-CONSTRUCTION.

Comp. Laws, § 271, provides that any person or persons who shall make any excavation, or being the owners or in possession of any excavation, whether used for mining or for any other purpose, shall, during the time they may be employed in excavating, or after they may have ceased work on or abandoned the same, erect substantial safeguards, and keep the same in good repair, around such works or shafts, sufficient to securely guard against danger to persons or animals from falling into such excavation. Held, that such act was not limited to excavations for mining purposes, but required the guarding of excavations in streets, made for the benefit of abutting owners, rendering them liable for injuries to a traveler because of their failure to comply therewith.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1684-1687; Dec. Dig. § 808.*1

On rehearing. Rehearing denied.

For former opinion, see 103 Pac. 1013.

NORCROSS, C. J. It is urged, on petition for rehearing, that in the opinion heretofore rendered (103 Pac. 1013) we did not pass upon appellants' contention that there was a failure upon the part of the plaintiff to show that any duty was imposed upon the defendants to guard the excavation, for the reason that it was not within a lawfully established street or public highway, and not within the portion thereof being used by the public as a thoroughfare. We did not deem it essential to determine whether Minor street in the town of Goldfield was

A master must exercise ordinary care to furnish its servants with a reasonably safe place in which to work and to provide for the reasonable safety of the servants in the course of their employment.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 179; Dec. Dig. §§ 101, 102.*]

5. MASTER AND SERVANT (§§ 101, 102*)-SAFE PLACE TO WORK-CARE REQUIRED.

The duty of a railroad to exercise ordinary care to furnish its servants engaged in the work of repairing the roadbed with a reasonably safe place in which to work begins from the time the servants board a train to be carried to their work.

[Ed. Note.-For other cases, see Master and [Ed. Note. For other cases. see Master and Servant, Dec. Dig. §§ 101, 102.*]

Appeal from District Court, Third District; T. D. Lewis, Judge.

Action by Nick Jachetta, by Raphael Jachetta, his guardian ad litem, against the San Pedro, Los Angeles & Salt Lake Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Pennel Cherrington and W. W. Little, for appellant. King & Burton and Samuel Russell, for respondent.

MCCARTY, J. Plaintiff, Nick Jachetta, by his guardian ad litem, Raphael Jachetta, brought this action to recover damages for personal injuries sustained by plaintiff in a collision of a train of cars loaded with lumber and bridge timbers, upon which plaintiff was being carried, with two box cars which had been left standing upon defendant's main line of railroad track. The complaint, among other things, alleges that defendant carelessly and negligently omitted to place any watchman or lookout upon the front of said train, and upon the forward flat car upon which plaintiff was being carried, and negligently failed and omitted to take reasonable precaution to watch the track in advance of said train, and carelessly and negligently caused said train to run at a high and dangerous rate of speed of more than 30 miles per hour, along and over its track, and to collide with two box cars which defendant had carelessly and negligently left standing upon the main line of its track. The answer of defendant denied all the allegations of negligence set out in the complaint and affirmatively alleged that there was no statute in the state of Nevada at the time of the collision in which plaintiff was injured governing the relation of master and servant, and that the negligence, if any, which caused plaintiff's injuries, was that of his fellow servants. A trial was had to a jury, who found the issues in favor of the plaintiff and assessed his damages at $7,000. From the judgment entered on the verdict, defendant has appealed.

ary, 1907, plaintiff was in the employ of the Los Vegas & Tonopah Railroad Company in the state of Nevada. The railroad line of defendant passes through Lincoln county, state of Nevada, and at Los Vegas in said county forms a junction with the Los Vegas & Tonopah Railroad. Plaintiff, with about 300 fellow laborers, all under the direction and supervision of John Conway, who was general foreman and assistant superintendent of construction for the Los Vegas & Tonopah Railroad Company, was engaged in constructing the railroad grade and laying the tracks of said company in the state of Nevada. These laborers, including plaintiff, lived in an outfit train of about 30 cars. On or about February 25, 1907, this outfit train and the laborers mentioned, including plaintiff, were transferred along the line of the Los Vegas & Tonopah Railroad to Los Vegas, and there turned over and delivered to the operatives of the defendant, the San Pedro, Los Angeles & Salt Lake Railroad Company, to be transported along the line of defendant's road to a point where the road had been damaged and rendered impassable for trains by freshets and flood waters. On the 26th and 27th of February, 1907, the outfit train was moved along the line of defendant's road easterly from Los Vegas, during which time plaintiff and his fellow laborers worked under Conway on the road repairing the same where it had been damaged by flood waters. Plaintiff and his fellow laborers still remained in the employ of the Los Vegas & Tonopah Railroad Company and were paid by that company for the labor they performed upon the defendant's road. These men, including the plaintiff, were under the direct control and supervision of Conway, who received orders respecting the work that was being performed from R. K. Brown, defendant's engineer of "maintenance of way." Brown, in his testimony, said that he never spoke to the men (referring to the plaintiff and his fellow laborers).